Prof. Raquel Xalabarder. Professor of Intellectual Property, Law and Political Science Department, Universitat Oberta de Catalunya (UOC). Copyright law for a digital single market: how far are we from achieving it?
Copyright law grants an exclusive right on works contained in products (tangible goods) and services which must freely circulate within the EC/EU internal market.
So far, we have a bunch of national copyright laws, with different scopes, and with a marked principle of territoriality. Can we harmonize these issues? There has to be no discrimination within the EU: what you grant to a national author, you grant it to a EU author. BUT. We had a single digital market for goods, but not for services. Once a work was embedded on a product, it fell within EU common law; but it happens otherwise with services. And here is the big deal we are facing now.
Rome EC Treaty:
Subsidiarity principle, only applies when objectives are better achieved by the EC than by member states individually.
Harmonization through directives, that need national implementation.
Lisbon EU Treaty Art. 118 TFEU: mandate for uniform IP rights in all EU. Need for a regulation on EU copyright?
We now have a bunch of EU directives that deal with computer software, rental and lending rights, satellite and cable communications, terms of protection, databases, copyright, resale right, enforcement, orphan works, collective management (of rights) organizations and music online, etc.
There’s a big deal trying to harmonize concepts like what is a work, what is an author, what are related rights, etc. Different directives refer to works and authors in very different ways.
Same happens with moral rights, exploitation rights, remuneration rights… Remuneration rights are especially difficult to address as they vary very much across countries, in what they cover, in the amount or kind of remuneration, its management, etc.
About communication to the public, there is no clear consensus on what the “public” is, communication, display or performance, etc.). Here the concept of linking to (protected) content becomes crucial, of course including the role of the agent that created the link.
The harmonisation of limitations to intellectual property rights are also scattered across different directives and regulations in general.
Licensing, enforcement… again matters of disagreement and lack of harmonization.
Discussion
Wouter Tebbens: copyleft software heavily relies on copyright, and the design and the product are very much the same. But what happens with copyleft hardware, where the design and the product are much different? Xalabarder: it is uncertain. It depends on whether you just protect the design, and then the product is not affected, or if you take into account the design embedded in the product. It is difficult to tell.
Some conclusions?
Fragmented harmonization of some issues: work, author, rights, limitations…
Court of Justice of the European Union (CJEU) role is paramount.
Territorial licensing allowed (for services) as “original sin”.
Member states “reception” of EU copyright law and caselaw?
Communications on Digital Single Market and e-Commerce Chairs: Blanca Torrubia
The role of geoblocking in the internet legal landscape. Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law at William S. Boyd School of Law, University of Nevada, Las Vegas.
Geoblocking: blocking depending on place and depending on content.
Geoblocking breaks the ubiquity of the Internet and users’ expectations of a territorially-unlimited Internet. On the other hand, geoblocking is a way to try to accommodate Internet content to the territorial restraint of national jurisdiction.
Opposition to geoblocking:
Contrary to the original architecture of the internet.
It’s imperfect, leaving lots of room for spillovers.
Has uncertain legality.
Is associated with not insignifiat implementation costs.
May have an impact on freee speech.
The EU proposes a campaign against geoblocking, though proposing a new regulation to address geoblocking and other forms of discrimination based on customers’ nationality.
Some positive ends of geoblocking:
Contributes to the diversity of content on the Internet.
Geoblocking allows for content to be made available where it is legal.
A territorial partitioning of the Internet is inevitable as long as countries have strong national public policies that shape at least some of their laws.
Online gambling and other sensitive areas of regulation will provoke countries’ strong policy stances, for which geoblocking on the Internet offers a workable modus operandi.
Hardwiring Privacy in the European Digital Space. Lee Bygrave, Professor, Norwegian Research Center for Computers and Law.
Information systems architecture has the ability to shape behaviour beyond what legislation allows.
There are explicit attempts to change system architectures to force changes in law or to put in practice de facto “regulations”, especially in the field of data protection and privacy.
Some of these hardwiring attempts to change regulation may have an impact in homeland security, on privacy guarantees, etc.
The exclusive right of the author to control publicity and sale offers of their work. Impact in the building of a single digital space. Antoni Rubí Puig, Profesor de Derecho Civil de la Universitat Pompeu Fabra.
Can we buy in third countries’ websites goods that are subject to intellectual property rights that apply in our country but not in the third country? Can we do that without incurring in an IP illegality? Probably not. The right to distribute works is exclusive of the author’s.
There are several points in the whole process of publishing, offering, selling and delivering goods where the author has their say according to their intellectual property rights.
The proposals of the European Commission about contract rules in the supply of digital content and online sales: conformity, remedies and exercise of remedies Rosa Milà Rafel, Investigadora Juan de la Cierva-Incorporación de la Universidad de Castilla-La Mancha Centro de Estudios de Consumo.
Proposal of EU directive of online sales. Goal: to eliminate one of the main barriers against international e-commerce in Europe.
Problem: if it is approved, it will indeed increase the fragmentation of actual regulation.
Proposal of EU directive of supply of digital content.
It includes a wide range of digital content, such as cloud computing services and social networking services.
Unlike the former one, this directive is likely to reduce fragmentation of existing regulation.
Prof. Hugh Beale. QC FBA, Professor of Law, University of Warwick; Visiting Professor and Senior Research Fellow at Harris Manchester College, Oxford. The future of European Contract Law in the light of the European Commission’s proposals for Directives on digital content and on-line sales
The main goal of the European directive was to increase consumer confidence, that consumers were given a minimum of rights wherever they did their purchases.
But it was also about reducing traders’ costs, as differences in contract law creates costs. After 2003, the European Commission has been working to remove barriers to trade, and not only in B2C contracts, but also in B2B contracts.
In general, Rome I art 6(2) says that consumers are entitled to mandatory rules of Law of State of habitual residence. Which is a major problem for sellers who have to know the applicable law for every consumer. A full harmonization seems highly desirable. But this may cause withdrawal of rights to consumers in some given states, which most will just not accept.
The Digital Content Directive applies to the trade of digital content: stream, download, etc. digital content. But is this like buying something that you then own? Or is it more like hiring someone’s services? The directive applies to both, as a one time delivery or as something that stands for a period of time. And it includes exchanges of digital goods or services for a price or in exchange of personal data. Last, rights apply to whether you are buying a physical support (e.g. DVD) or not (e.g. downloads).
DCD Art 18 implies that any individual can initiate an action against terms that they may find abusive. And, accordingly, the EC and/or the Member State has to enforce the regarding of the law. This can have a potential huge impact on the compliance with the directive.
What will the impact of the directive be? Probably small, because:
It only includes a very narrow set of goods and services.
It leaves out everything related to B2B, and SMEs would benefit much from it.
Discussion
Blanca Torrubia: how are differences between property rights dealt with in the directive? Beale: it seems that the big differences in how to understand property rights are between the EU and the US, more than within member states.
Multidisciplinary debate on the challenges of smart cities Chairs: Marta Continente
Pilar Conesa. Founder and director of Anteverti.
Increasing concentration of people living in urban areas. Areas which are becoming totally saturated and ask for new ways or urban planning. This includes not only transportation, but also public services like education, healthcare, etc. The 19th century was a century of empires, the 20th century was a century of nation states, the 21st century will be a century of cities, Wellington E. Webb.
If we want to develop new cities, new smart cities, we need to know and share the approach behind. This is not trivial and it will determine the model of smart city that will be put into practice.
There is no smart city without a smart government.
Oriol Torruella. Director of the Legal Consultancy Department, CESICAT, Information Security Center of Catalonia
Smart city: improve the efficiency and efficacy of the management of the city, by means of an intensive usage of ICTs.
There are, though, some risks: the vulnerabilities of both software and hardware; the management of the citizen identity; treatment of personal data; affectation to the availability and security of critical infrastructures, etc.
It is crucial that citizens become smart citizens too if they are to be part of a smart city. They have to be aware of all risks of cibersecurity, what are the laws that apply to certain practices and activities, etc.
Ricard Faura. Head of Knowledge Society, Generalitat de Catalunya
We have to foster some elements through ICTs: participation, organization and collaboration.
For the smart city to be useful for the citizens, one needs to empower the citizens themselves, so that they can be active and critical. But ICTs have to be empowering, not barriers.
Main duties of the government: diffusion, information, awareness raising, training.
The city has to be a real lab where everything is possible and everything can be analysed and improved, and especially fitting the particular needs of the different communities that one finds within the city or across cities.
Discussion
José Luis Rubiés: Is there a risk of an illustrated despotism from the one that manages all these data? Who is the curator of the big data coming from smart cities? Ricard Faura: yes, this is a huge risk. Oriol Torruella: we are just at the dawn of smart cities and, as usually Humanity has done in the past, we work on a trial and error basis: we implement things, realize the risks, try to correct them, and on and on. Little by little we will learn to design better, to avoid risks before we implement, etc.
Q: can we extrapolate initiatives from one place to the other so that we do not have to reinvent the wheel? Marta Continente: yes and no. Yes, one can adapt what worked elsewhere. But the important thing is that ICTs, or whatever initiative on smart cities, are just a toolbox. And, as such, its application or usage will strongly depend on the realities found in each specific city.
Smart city, smart policing Prof. Dr. Dr. Juan José Medina Ariza. Professor of Criminology (University of Manchester)
Security has traditionally been based on a top-down visions, a centralized control room.
Many municipalities have sort of “dashboards” that map the city crime, security issues, socio-economic indicators, etc.
These dashboards aim at locating clusters where more crime takes place, identifying the determinants or correlating factors of that crime, etc. After this clustering and correlations, one can create tools that can try to predict crime, based on trends and simulations. And once crime is “predicted”, then comes “predicted policing”, that aims at stopping crime just before it takes place, going to the place where crime is most likely to happen.
Problems when opening data: What happens when we open the data? How legitimate is its collection? How fair is its analysis?
The risks of Campbell’s law: the more one uses an indicator for decision-making purposes, the less it is useful for decision-making purposes, as it use imprints a bias into the indicator itself.
We know too that in some cases, there are biases in citizens reporting crime: many of them will not be eager to report crime, because this will diminish the value of their real state, because of own security reasons, etc.
What’s next? From predicting hotspots to individual predictions. A growing awareness about the problems with algorithms. Going back to measuring what matters. Privatised criminal justice is not science fiction any longer.
On the other hand, we will maybe see a rise in transparency in what relates to police practices, like stop and search.
There is a problem with profiling with big data, as in the one hand it is built upon evidence, but on the other hand it can strengthen biases, stigmas and prejudices.
Discussion
E.J. Koops: does crime mapping represent reality or constitutes reality? Juan José Medina: this is definitely a problem with mapping that needs being addressed specifically in each and every case.
Physical and Online Privacy: fundamental challenges for level frameworks to remain relevant. Prof. Dr. E.J. Koops. Professor of Regulation & Technology (Tilburg Institute for Law, Technology, and Society)
Is it legal, or should it be allowed to:
Scan homes with termal equipped drones in search of hemp domestic plantations?
Take a snapshot of a stranger, google them, recognize their faces, peek at their social networking profiles and start a conversation with them on their preferences?
Track people inside shops with wifi-tracking, analyze their movements in the shop and thus place advertising on the counter?
Conceptual history of locating privacy:
The body (habeas corpus): physical privacy.
The home: physical privacy + private space.
The letter: physical privacy + closed ‘space’ between homes.
The telephone: ‘closed’ ‘space’ between homes.
Mobile phone: ‘closed’ ‘space’.
The computer: protecting data, not spaces.
The cloud: loss of location.
The home evaporates. There is a lot of information that now one can access without entering a home. And, usually, looking inside without entry is allowed. Same happens now with technology and digital data. The public space is increasingly becoming privacy-sensible: increased traceability, increased identifiability (face recognition, augmented reality)…
And with the trend to improve body functions through implants and prosthesis, the body itself sort of becomes a “public space” as its data (including brain stimuli) can be exported out of the body.
It is increasingly difficult to draw the technical distinction between traffic data and content of communications, particularly on an Internet context. The distinction, indeed, is becoming less relevant, as traffic data are also increasingly privacy-sensitive (location, profiling).
Problems/fallacies:
Data protection law cannot give individuals control over their data.
Too much confidence in the controller/regulator: the law is becoming too complex.
Regulating everything in one statutory law: impossibility for comprehensiveness.
